The division bench of Chief Justice Naresh H Patil and Justice MS Karnik of the Bombay High Court on Monday sought reply from the State of Maharashtra in a batch of petitions filed by owner of Silver Spoon, a hukkah parlour, challenging a blanket ban imposed on hukkah parlours in the state.
The State of Maharashtra had amended the Cigarettes and Other Tobacco Products (Prohibition) Act (COTPA) of 2003 on October 4, 2018, and received the President’s assent this September. After the amendment, all licensed hukkah parlours ceased to be legal.
The petition referred to the doctrine of proportionality and argued that the amendment violates Article 14 of the Constitution and the theory of proportionality laid down by the Supreme Court as the reason for the said amendment is the Kamala Mills fire incident, according to the legislation itself.
The petition also argued that the Kamala Mills fire incident that killed 14 people was caused as a result of violation on part of owners in adhering to the fire safety norms and not because of hukkahs. Hence, the said legislation is arbitrary.
The state reasoned in its resolution of the amendment that youth were increasingly frequenting hukkah parlours and the same would curb consumption of tobacco.
It was also stated in the petition that repeatedly the Bombay High Court as well as other high courts including that of Karnataka have held that hukkah parlours are legal for adults over 18 as long as they are complying with BMC Rules.
In 2005, the apex court in Narinder S Chaddha vs. MCGM, had allowed restaurants to serve hukkah in demarcated smoking areas, the petition pointed out.
It argued that the amendment also violated Articles 19(1)(g), 21 and 300A of the Constitution. All the hukkah parlours that had demarcated areas for smoking as per BMC Rules and were duly licensed were suddenly asked to shut shop even though hukkah products are openly sold in the market still along with other tobacco products like bidi, cigarette etc., the petition stated.
Thus, the petitioners prayed for the said amendment to be struck down and in the interim sought directions to the respondent authorities not to take any coercive action against hukkah parlours.
The court directed the state to file its reply by December 17, 2018.
Read the Petition Here